The Obama administration is overreaching its authority and forcing religious employers to violate their fundamental beliefs, they assert.

BY BRIAN FRAGA

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Posted 4/8/13 at 6:11 PM

WASHINGTON — More than 85,000 parties have filed comments ahead of today’s 11:59pm Eastern time deadline to respond to the federal government about the latest version of its mandate that forces employers to provide contraceptives, abortifacients and sterilization in their employee health-insurance plans.

“There is still a lot of energy behind this in the Catholic community,” said Anthony Picarello Jr., associate general secretary and general counsel for the U.S. Conference of Catholic Bishops, which urged Catholics and people of good will to submit their comments with the U.S. Department of Health and Human Services.

More than 147,000 comments — most critical of the mandate — were previously filed when the government’s initial rule was issued in August 2011 and when the Obama administration proposed its first accommodation in February 2012.

The bishops’ March 20 report said last year’s proposed accommodation was inadequate and that the administration’s latest version of the mandate still violates religious liberty and conscience rights.

The USCCB filed its 26-page comment with HHS on March 20. The report said the mandate was virtually unchanged and that its religious “exemption" still excludes most religious organizations and does not remove the burden on religious freedom.

EWTN’s Response

The Eternal Word Television Network also filed a comment, asserting that the government’s proposed rule does not permit anyone other than a church to be exempt from the mandate, noting that religious beliefs and conscience objections are held by people and organizations that are not churches.

The government is essentially forcing EWTN — which owns the Register — and other objecting parties to call contraceptives, sterilization and abortion-inducing pills “good” and to pay for them, without deductibles or co-pays by employees, said the filing, which was signed by EWTN President and CEO Michael Warsaw and General Counsel John Manos.

EWTN’s comment said, “At the heart of this dispute is whether EWTN or persons with similar beliefs must use their bodies and money to support this erroneous belief under government force. The Constitution restrains the government from forcing its beliefs on individuals, particularly any religious belief.”

“Yet this mandate persists to force EWTN and others to part with money and their health under threat of government force,” the filing adds. “Thus this fight is not about providing health care; it is about an erroneous belief, which the government accepts as a foregone conclusion, that contraceptives, voluntary sterilizations and abortion-inducing drugs are health care. EWTN refuses, by exercising the rights guaranteed to it by the same government, to swallow this error and merely ‘go along.’”

The federal government set April 8 as the deadline for public comments on its latest version of the HHS mandate. The government is expected to present its final rule before Aug. 1, at which point the “safe harbor" — a temporary exemption from the mandate granted to religious nonprofits — expires.

The government did not respond to a request for comment about the record number of comments filed in opposition to the mandate. An HHS spokesman only issued a brief statement, saying, “After the comment period closes, HHS looks forward to reviewing the submitted comments.”

A Force for Change?

Picarello told the Register that there is a good chance that the overwhelming number of comments could persuade the administration to make further revisions to the mandate.

“More importantly, this is one of the few available avenues we have for making a difference,” said Picarello, adding that the bishops’ conference is “aggressively” fighting the mandate through the legislative, executive and judicial branches of the federal government.

Despite the number of comments, however, some Catholic political observers do not expect the Obama administration to radically alter the mandate as it is now written.

“Both the sheer number of comments and the important groups making those comments have certainly been noticed. That said, the parameters of the administration’s policy are probably now set, and we’re not likely to see any major changes to the mandate’s rule beyond its welcome elimination of the four-point definition for 'religious institution' that was part of the original rule,” said Stephen Schneck, director of the Institute for Policy Research and Catholic Studies at The Catholic University of America in Washington and a member of the board of directors of Democrats for Life.

In early February, President Barack Obama’s administration proposed new rules — known as a Notice of Proposed Rulemaking — that it said would accommodate religious nonprofits with moral objections to covering contraceptives, abortifacients and sterilization in their employee health-insurance plans. The amended rule, the administration said, would have employees enrolled in separate individual policies — at no cost to the employer — that would only cover contraceptives.

However, the USCCB subsequently said the administration’s “accommodation” was still based on questionable factual assumptions and did not address the federal government’s “unprecedented violation of religious liberty.”

The bishops said the mandate continued to define “religious employer” in a narrow sense and made no exemption for individuals and stakeholders with religious and moral objections to contraceptive coverage.

The bishops urged Catholics to file comments urging HHS to address those concerns.

‘Deficiently Erroneous’

EWTN’s filing said the HHS mandate is “deficiently erroneous and must be corrected” for forcing EWTN to act in a manner contrary to its religious beliefs.

“The government is forcing EWTN, or anyone else with these beliefs, to agree with their error — an act that will cause a reasonable person to see that the government is forcing EWTN and others to call evil good and pay for it,” it said. “This use of government force is not theoretical or philosophically abstract. Rather, it is a real, concrete and earthly injury being performed with the disguise of health care.”

Contraception, EWTN noted, is not health care.

“Whatever else the so-called ‘preventive services’ purport to prevent, it is obvious that they don’t prevent or remediate injury or disease and are therefore not health care,” the network’s filing said. “Rather, they appear to prevent health and are contrary to health care. They may in this sense be called evil, yet the government is using its force to make persons who believe otherwise call it good."

The proposed rule, EWTN’s filing added, does not respect individuals’ First Amendment rights of religious freedom.

“The American public is free to hold religious beliefs whether or not they declare themselves to be a church,” EWTN said. “Similarly, the public is protected from being forced to call evil good at the tip of the government’s whim and threat of force. This should seem apparent, regardless of whether the person is an individual, a church, a nonprofit or anyone else. Yet this rule segregates religious beliefs from the public and herds them into churches and a few nonprofits.

“No one but a church is allowed to live by their religious beliefs under this rule — and given how contrary the government’s error is to these religious beliefs, it is absurd that such an elaborate scheme has been erected.”

Despite the government’s language to the contrary, EWTN further added that the mandate will force higher administrative fees upon people who exercise their religious or conscience beliefs.

The network said: “Not only does the government force us to comply by mandating coverage and the providing of these evils, but it appears that it is going to raise our administrative cost by at least 3 [%]!”

Other Comments

Thirteen nonprofit entities’ lawsuits have been dismissed on procedural grounds. Fifty-three lawsuits, representing more than 160 parties, have been filed against the mandate, according to the Becket Fund for Religious Liberty, which registered its own comment April 8 with HHS.

The Becket Fund said in its comment that the federal government has exempted thousands of businesses from the mandate for political reasons through the grandfathering provision of the Affordable Care Act and that there is no excuse for not extending similar exemptions to private employers for religious reasons.

Adele Auxier Keim, an attorney with the Becket Fund, told the Register that the accommodation fails to permit religious organizations to provide health insurance that squares with their religious convictions.

Several other Catholic agencies and dioceses followed the bishops’ suggestion to file formal comments with HHS. On April 5, the Archdiocese of Washington submitted its comment that notes the proposed revisions do not resolve the religious-liberty issues posed by the mandate.

In a statement, the Archdiocese of Washington said: “In fact, in at least one respect, the proposed new rule makes religious organizations’ situations worse by eliminating an important provision that allows the exemption of an exempt religious employer to be extended to all other religiously affiliated organizations that participate in that religious employer’s group plan.”

The archdiocese, along with its co-plaintiffs, also filed a recent motion for summary reversal in the U.S. Court of Appeals for the District of Columbia Circuit, asking for the appellate court to reverse a lower court’s decision that dismissed the archdiocese’s lawsuit on the grounds that it was premature because of the government’s promises to amend the HHS mandate. The archdiocese argues the court should have held the case in abeyance, pending the government’s final rule.

The proposed new rule, the Archdiocese of Washington added, does not resolve the religious-liberty issues, but actually makes them worse.

“The archdiocese has long expressed its concern about the serious religious-liberty issues presented by the HHS mandate that would force religious employers either to provide coverage for drugs and procedures that directly violate the teachings of their faith or to expose their organizations to devastating penalties.”

“At the heart of the archdiocese’s concern is HHS’ attempt to define who is, and who is not, ‘religious enough’ to be exempt from compliance with the mandate, essentially limiting the exemption to churches and excluding other religious organizations like hospitals, schools and social-service ministries as not religious enough to be exempt.”